Former chief justices and judges have often ventured into politics but to imply that their judicial pronouncements were dictated by some extraneous considerations is contemptuous

~By Upendra Baxi

From time to time, episodes of ideological or political party affiliation of appellate justices have sent eddies and whirlpools across the calm still waters of adjudicative process. Only triumphant confidence and serenity have met this occasional disquiet.

It would be no different with retired Justice Abhay Thipsay, former judge of the Bombay and Allahabad High Courts who recently joined the Congress. He had joined the Bar in 1979 and became a magistrate in 1987; he was elevated to the High Court in 2011 after serving 24 years in the district judiciary. He was transferred to Allahabad High Court in May 2016, from where he retired in March 2017. Many a brethren have publically hailed Justice Thipsay for having a just reputation of being an honest and upright judge, and he himself has stated that throughout his judicial career, he decided cases without fear and favour, according to the law and the Constitution regardless of the impact on political parties.

There is no constitutional or legal prohibition on former judges joining a political party. In fact, illustrious retired justices have joined leading political parties (or become nominated members of the Rajya Sabha) and this included two chief justices of India. The illustrious list is as follows: Chief Justices of India Ranganath Misra and P Sathasivam (current governor of Kerala), Justices Baharul Islam, KS Hegde (who adorned the office of Speaker of the Lok Sabha), Vijay Bahuguna (who accepted the chief ministership of Uttarakhand) and M Rama Jois (RSS/BJP after retiring as chief justice of the Karnataka High Court). Two retired justices of the Supreme Court even displayed presidential ambitions and one occupied the high position of vice-president of India. And our jurisprudence was immeasurably enriched by Justice VR Krishna Iyer who served once as law minister of Kerala.

Nor is there any ban on freedom of speech and expression on those who have held the office of a judge. Accordingly, there is nothing remarkable in the observation (Live Law) that we “…know since 2014, the level of tolerance has gone down and the tendency to tolerate criticism has given way to immediate offensive reaction. I mean defaming someone, targeting them, people gathering outside your house because you do not agree with them, these type of things are growing. Then there is also an agenda to change the Constitution, re-writing India’s history etc…” That is an opinion by a citizen, and the party thus criticized has an equal right to disagree. However, Judge Thipsay also said that this step “might result in loss of credibility …”

Why this loss of credibility? While public trust in our rulers is the bedrock of belief in democracy and judicial review, is it justifiable to attribute a retrospective leaning towards a political party or regime? Justices have to decide several high-profile cases (invoking election, systemic political and governance corruption, and criminal culpability of people in high places) affecting various political parties, but the implication that what was done judicially can be retrospectively derided as dictated by some extraneous considerations is simply unworthy, if not outright contemptuous. Only Parliament may decide to remove a justice on an address of impeachment when a committee (set up under the Judges Enquiry Act, 1967) has reported to it on the basis of compelling internal and external evidence.

What about members of the Bar who chose to become grassroots or appellate justices? As lawyers of standing, they also have distinct political ideologies and some even are members of a political party. Many of them have been standing government counsels, advocates and solicitors general—all appointed by regimes in power. Should they never be elevated? If so, which classes of citizens may we then prefer to be our justices?

Undoubtedly, any decision or direction of a justice may have, immediately or in the median term, a regime-augmenting or regime-depleting effect. I showed this in some detail in my book, Indian Supreme Court and Politics (1980), where I read judgments as “manifestos” which a regime in power may find unwelcome or even detest and which the opposition parties may hail. Occasionally, there might be a rare display of political consensus on particular amendments, which the Supreme Court may review on the basis of alleged violation of the basic structure or essential features of the Constitution. The Court now possesses the power to render unconstitutional any constitutional amendment.

I have made (and still maintain) a distinction between two kinds of politics: constitutional politics and competitive party politics. Justices, typically, have no personal interest in the result of a case, whereas party politics is based on the relentless, collective self-interest of the leader and the party, all too often urged as public or even national interest. Democratic vision and experience suggests that there is nothing wrong in egoistic (self-interested) reason; in fact, democracy requires competitive liberal politics, but it is based on the idea that competition must exist within a framework of agreement enshrined in the Constitution. A prime task of the judiciary is to protect this framework through disciplined acts of interpretation, even running the risk of “judicial overreach”.

We also ought to recall a few things when criticising our justices. First, (as Chief Justice Mohammad Hidayatullah imbibed in me), even when it is clear that some justices can be said to be “looking-forward” and not “forward-looking”, one ought to remember that sitting judges cannot reply back: our criticism must be disciplined with the utmost study and responsibility. Second, he also used to say to me that I had the tendency of converting all political questions into judicial ones; but what is one to do when leading political actors flock to the Supreme Court in search of constitutional solace—from Communist leader AK Gopalan via Indira Gandhi to Maneka Gandhi to SR Bommai and beyond? Supreme Court reports contain a veritable Who’s Who of party leaders and political parties. The truth is that constitutional questions are political concerns and vice versa.

Third, one must be aware of opportunities and constraints of judging; and these arise from the ways of argumentation at the Bar. Jeremy Bentham, an English jurist, said long ago that law is made by “judge and the company”, and by “company” he meant the lawyers who daily appear before the courts. To take but just one example of the infamous habeas corpus case: no counsel argued the legality of the declaration of the Emergency of 1975, four justices accordingly sustained the validity of MISA, the dreaded internal security law. Justice HR Khanna heroically dissented; it was a fine moral assault on constitutional dictatorship that travelled beyond the arguments actually made. Ought our core human rights to depend on what is argued or what ought to have been argued?

The Sahara case, followed more elaborately in the NJAC decision, articulates a growing concern about the asymmetric power of the Bar over the Bench, which can be used for political interests. A mere mention by lawyers no longer suffices a judicial act of recusal (withdrawal from hearing a case). Financial bias must now be elaborately shown for recusal to occur; and the constitutional oath to do justice without fear or favour will trump any suggestion of institutional bias.

One must also ask whether the norms of rectitude extend to all learned professions. As a law teacher for decades, in India and overseas, I had the privilege to hear student articulation of all political views and put aside my own views on current political developments. I believe that constitutional adjudication and teaching ought to take seriously the distinction between the political (how power ought to legitimate itself) and politics (competition for acquisition, exchange, distribution, and consumption of political power)—or the distinction between politics of and for human rights and collective security. The failure to maintain this distinction is what wraps opinion and judgement and justices know it well. All learned professions must draw lessons from the judiciary in ways of pursuing the values of the political.

Judging the judges is a serious reflexive and democratic exercise, which starts with the maxim of folk ethics: “to err is human”. But to render unpopular decisions is not to err; to err is to make decisions which cannot be legally or constitutionally sustained. Only those decisions endure where the law further converses with justice. The virtues of adjudicative tradition and constitutional culture and the collective esteem of the Bar matter a good deal.

A judgment is both an act of reason and will. History judges severely the judicial will to power for its own sake. Justices may only wield constitutionally chastened power—acts of disinterested judicial power, after hearing all sides, allowing appeals and review, and now (after 2012) the “curative” jurisdiction of the Supreme Court. In inventing this new jurisdiction, the Court has now fully acknowledged that it could commit an honest error of interpretation, which may be rectified if constitutional flaws are detected. Already, a few curative petitions are before the Court and one hopes that the promises of constitutional justice will triumph.

—The author is an international law scholar, an acclaimed teacher and a well-known writer